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                                   Before the

                       Federal Communications Commission

                             Washington, D.C. 20554


                                  )                               
                                      File No. EB-09-SE-098       
     In the Matter of             )                               
                                      NAL/Acct. No. 201032100003  
     Uniden America Corporation   )                               
                                      FRN 0001657303              
                                  )                               


                  Notice of apparent Liability for forfeiture

   Adopted: November 3, 2009 Released: November 5, 2009

   By the Chief, Spectrum Enforcement Division, Enforcement Bureau:

   I. introduction

    1. In this Notice of Apparent Liability for Forfeiture ("NAL"), we find
       Uniden America Corporation ("Uniden") apparently liable for a
       forfeiture in the amount of twenty-three thousand dollars ($23,000)
       for willful and repeated violation of Section 302(b) of the
       Communications Act of 1934, as amended ("Act") and Section 2.803(g) of
       the Commission's Rules ("Rules"). The noted apparent violations
       involve Uniden's marketing of non-compliant General Mobile Radio
       Service ("GMRS") transmitters.

   II. BACKGROUND

    2. Section 95.183(a)(4) of the Rules prohibits GMRS operators from
       transmitting coded messages and messages with hidden meanings. The
       Enforcement Bureau's Spectrum Enforcement Division ("Division")
       received information indicating that Uniden was marketing GMRS
       transmitters equipped with voice scrambling technology. After its
       receipt of this information, the Division began an investigation. In
       pursuance of the investigation, the Division conducted internet
       research on April 8, May 5 and May 6, 2009, on Uniden's website,
       www.uniden.com. During the internet research, Division staff observed
       that Uniden was offering for sale the following GMRS transmitter
       models described as having a "Voice Scramble Security" feature: the
       Uniden GMR1048-2CK, GMR1448-2CK, GMR1558-2CK, GMR1588-2CK,
       GMR-1595-2CK, GMR2059-CK, GMR-2089-2CK and GMR2099-2CK. All of those
       transmitters operate both on frequencies assigned to the GMRS and on
       frequencies assigned to the Family Radio Service ("FRS"). The
       Division's examination of the user manuals for these models indicated
       that, for four models (GMR1448-2CK, GMR2059-CK, GMR-2089-2CK and
       GMR2099-2CK), voice scrambling operates only on FRS frequencies.
       However, for the other four models (GMR1048-2CK, GMR1558-2CK,
       GMR1588-2CK and GMR-1595-2CK), the user manuals did not indicate that
       voice scrambling is limited to FRS frequencies.

    3. The Division directed a letter of inquiry ("LOI") to Uniden on June
       25, 2009. Uniden responded on August 24, 2009. In its response, Uniden
       stated that its voice scrambling feature is commonly called voice
       inversion, which is "a process that interchanges high and low speech
       frequencies by removing the carrier frequency and [transmitting] only
       one sideband in a communications link. This renders the speech
       unintelligible unless received by a device capable of replacing the
       carrier frequency exactly."

    4. Uniden's LOI response indicates that it began marketing the following
       transmitter models on or before November 1, 2005: GMR1048-2CK,
       GMR1558-2CK, GMR1588-2CK and GMR-1595-2CK (collectively designated by
       Uniden as "UAC Products"), which were manufactured at its factory in
       China. The GMR1048-2CK appears to be certified under the FCC ID
       AMUOT016; the GMR1558-2CK under the FCC ID AMWUT017; and the
       GMR1588-2CK and GMR-1595-2CK under the FCC ID AMUOT018. All of
       Uniden's UAC Products were equipped with a voice scrambling feature
       which was available on GMRS frequencies. Uniden's Personal Telephone
       Communications ("PTC") Division, which sells to major retailers and
       distributors, sold and distributed large quantities of UAC Products
       during 2006 and 2007. Uniden states that initially it believed its UAC
       Products were compliant with the Commission's Rules but it revisited
       the issue after one of the Telecommunications Certification Bodies
       ("TCBs") it used for testing its devices expressed concern in mid-2006
       about the voice scrambling feature. On August 24, 2006, Uniden
       consulted Commission staff and received a "verbal clarification that
       voice inversion scrambling on GMRS channels" is not permitted by the
       Commission's Rules. Uniden states that Commission staff requested that
       it make an official inquiry through the FCC's Knowledge Database
       ("KDB") system. On October 1, 2006, Uniden states that it received a
       newsletter from another of the TCBs that it used for testing which
       included a clarification consistent with the staff opinion. On April
       16, 2007, the Commission's staff published an interpretation of its
       rules advising that voice scrambling constitutes coded messaging and,
       therefore, is not allowed for GMRS devices. Uniden states that, by
       this date, it had discontinued the manufacture of the UAC Products and
       replaced them with models that did not have the voice inversion
       feature of the UAC products. Uniden acknowledges, however, that its
       PTC Division "continued to sell through [its] inventory of UAC
       Products until it was depleted in December 2007." Uniden also
       indicates that its Product Service and Support (PSS) Division, which
       sells exclusively to online customers, did not receive notice that the
       UAC Products were being discontinued and continued to sell small
       quantities of those devices during 2008 and 2009.

    5. Uniden filed supplementary LOI responses on September 22 and October
       7, 2009. Uniden argues in the latter response that that the following
       factors mitigate its violations: its efforts to comply with the Rules
       "in the face of strong competitive pressures"; its resulting loss of
       market share; the small quantities of UAC devices marketed during 2008
       and 2009; Uniden's efforts to obtain a rule clarification; and its
       history of compliance. Uniden contends that $7,000 would be the
       appropriate base forfeiture amount in this case and that this amount
       should be reduced to $3,500.

   III. Discussion

     A. Uniden Apparently Marketed Noncompliant Devices

    6. Section 302(b) of the Act provides that "[n]o person shall
       manufacture, import, sell, offer for sale, or ship devices or home
       electronic equipment and systems, or use devices, which fail to comply
       with regulations promulgated pursuant to this section." Section
       2.803(g) provides in pertinent part:

   The provisions in paragraphs (b) through (f) of this section do not apply
   to radio frequency devices that could not be authorized or legally
   operated under the current rules. Such devices shall not be operated,
   advertised, displayed, offered for sale or lease, sold or leased, or
   otherwise marketed absent a license issued under part 5 of this chapter or
   a special temporary authorization issued by the Commission.

   Additionally, Section 95.183(a)(4) of the Rules provides in pertinent part
   that "[a] station operator must not communicate ... coded messages or
   messages with hidden meanings."

    7. Uniden admits that it marketed three models of transmitters equipped
       with voice scrambling technology that functioned on GMRS frequencies
       and, therefore, were not compliant with Section 183(a)(4) of the
       Rules. We, accordingly, find that Uniden apparently marketed
       non-compliant radio frequency devices, in willful and repeated
       violation of Section 302(b) of the Act and Section 2.803(g) of the
       Rules.

   B. Proposed Forfeiture

    8. Section 503(b) of the Act authorizes the Commission to assess a
       forfeiture for each willful or repeated violation of the Act or of any
       rule, regulation, or order issued by the Commission under the Act. In
       exercising such authority, we are required to take into account "the
       nature, circumstances, extent, and gravity of the violation and, with
       respect to the violator, the degree of culpability, any history of
       prior offenses, ability to pay, and such other matters as justice may
       require."

    9. Section 503(b)(6) of the Act bars the Commission from proposing a
       forfeiture for violations that occurred more than a year prior to the
       issuance of an NAL. Section 503(b)(6) does not, however, bar the
       Commission from assessing whether Uniden's conduct prior to that time
       period apparently violated the provisions of the Act and Rules and
       from considering such conduct in determining the appropriate
       forfeiture amount for violations that occurred within the one-year
       statutory period.

   10. Under  the Forfeiture Policy Statement and Section 1.80 of the Rules,
       the base forfeiture amount for the marketing of unauthorized equipment
       is $7,000. Uniden apparently marketed three distinct models of GMRS
       transmitters that were equipped with the voice scrambling feature: the
       model certified under FCC ID AMWUT018 (designated by Uniden as models
       GMR1588-2CK and GMR1595-2CK); the model certified under FCC ID
       AMWUT017 (designated by Uniden as model GMR1558-2CK);and the model
       certified under FCC ID AMUOT016 (designated by Uniden as model
       GMR1048-2CK). Uniden argues that mitigating circumstances warrant
       limiting the base forfeiture amount to $7,000. The Commission has
       found, however, that the marketing of each separate unauthorized or
       non-compliant model constitutes a separate violation subject to the
       $7,000 base forfeiture amount. We find no basis for departing from
       this precedent in this case. We accordingly conclude that the base
       forfeiture amount of $7,000 is apparently warranted for each of
       Uniden's three models for a total proposed forfeiture of $21,000.

   11. Based on the record before us, and having considered the statutory
       factors enumerated above, we believe that an upward adjustment of the
       $21,000 base forfeiture amount is warranted here. First, we believe
       that an upward adjustment is warranted in view of the substantial
       number of non-compliant devices Uniden imported, sold and distributed
       in the United States and the fact that the violations continued over a
       significant period. Although Uniden argues that that it marketed only
       a small number of UAC Products in 2008 and 2009, as noted above, we
       can also consider Uniden's earlier conduct in determining the
       appropriate forfeiture amount. Uniden sold a very substantial number
       of UAC Products during 2006 and 2007, which warrants an upward
       adjustment. Further, we take into account Uniden's ability to pay a
       forfeiture in determining the appropriate forfeiture amount. As the
       Commission made clear in the Forfeiture Policy Statement, large or
       highly profitable entities, such as Uniden could expect forfeitures
       higher than those reflected in the base amounts. Finally, we find that
       Uniden's continued marketing of significant quantities of UAC Products
       through the end of 2007, well after Uniden received guidance from
       Commission staff that voice scrambling is prohibited in the GMRS, is
       egregious. Accordingly, applying the Forfeiture Policy Statement and
       statutory factors to the instant case, we conclude that Uniden's
       proposed forfeiture should be upwardly adjusted from the base amount
       by $10,000 to $31,000.

   12. Based on the record before us, and having considered the statutory
       factors enumerated above, we also believe that downward adjustment is
       also warranted. First, Uniden argues that it has a record of overall
       compliance. We agree and find that a downward adjustment of $5,000 is
       warranted on this basis. Uniden also argues that its conduct is
       mitigated by its efforts to comply with the Rules "in the face of
       strong competitive pressures," its resulting loss of market share, and
       its efforts to obtain a rule clarification. We find that this
       corrective action before the Commission notified Uniden of its
       violations warrants a downward adjustment. However, we must also take
       into account Uniden's continued marketing, via its PTC Division, of
       significant quantities of UAC Products through the end of 2007, well
       after Uniden received guidance from Commission staff that voice
       scrambling is prohibited in the GMRS, and the continued marketing by
       its PSS Division of smaller quantities during 2008 and 2009. Taking
       these facts into account, we find that Uniden's corrective action
       warrants a downward adjustment of $3,000. Accordingly, applying the
       Forfeiture Policy Statement and statutory factors to the instant case,
       we conclude that Uniden's proposed forfeiture should be adjusted
       downward by a total of $8,000.

   13. On the basis of the foregoing, we find that Uniden is apparently
       liable for a proposed forfeiture of $23,000.

   iV. ordering clauses

   14. Accordingly, IT IS ORDERED that, pursuant to Section 503(b) of the
       Act, and Sections 0.111, 0.311 and 1.80 of the Rules, Uniden, IS
       NOTIFIED of its APPARENT LIABILITY FOR A FORFEITURE in the amount of
       twenty-three thousand dollars ($23,000) for marketing non-compliant
       GMRS transmitters in willful and repeated violation of Section 302(a)
       of the Act and Section 2.803(g) of the Rules.

   15. IT IS FURTHER ORDERED that, pursuant to Section 1.80 of the Rules,
       within thirty days of the release date of this Notice of Apparent
       Liability for Forfeiture, Uniden SHALL PAY the full amount of the
       proposed forfeiture or SHALL FILE a written statement seeking
       reduction or cancellation of the proposed forfeiture.

   16. Payment of the forfeiture must be made by check or similar instrument,
       payable to the order of the Federal Communications Commission. The
       payment must include the NAL/Account Number and FRN Number referenced
       above. Payment by check or money order may be mailed to Federal
       Communications Commission, P.O. Box 979088, St. Louis, MO 63197-9000.
       Payment by overnight mail may be sent to U.S. Bank - Government
       Lockbox #979088, SL-MO-C2-GL, 1005 Convention Plaza, St. Louis, MO
       63101. Payment by wire transfer may be made to ABA Number 021030004,
       receiving bank TREAS/NYC, and account number 27000001. For payment by
       credit card, an FCC Form 159 (Remittance Advice) must be submitted.
       When completing the FCC Form 159, enter the NAL/Account number in
       block number 23A (call sign/other ID), and enter the letters "FORF" in
       block number 24A (payment type code). Requests for full payment under
       an installment plan should be sent to: Chief Financial Officer --
       Financial Operations, 445 12th Street, S.W., Room 1-A625, Washington,
       D.C.  20554. Please contact the Financial Operations Group Help Desk
       at 1-877-480-3201 or Email: ARINQUIRIES@fcc.gov with any questions
       regarding payment procedures. Uniden will also send electronic
       notification on the date said payment is made to
       Thomas.Fitz-Gibbon@fcc.gov.

   17. The response, if any, must be mailed to the Office of the Secretary,
       Federal Communications Commission, 445 12th Street, S.W., Washington,
       D.C. 20554, ATTN: Enforcement Bureau - Spectrum Enforcement Division,
       and must include the NAL/Acct. No. referenced in the caption.

   18. The Commission will not consider reducing or canceling a forfeiture in
       response to a claim of inability to pay unless the petitioner submits:
       (1) federal tax returns for the most recent three-year period; (2)
       financial statements prepared according to generally accepted
       accounting practices; or (3) some other reliable and objective
       documentation that accurately reflects the petitioner's current
       financial status. Any claim of inability to pay must specifically
       identify the basis for the claim by reference to the financial
       documentation submitted.

   19. IT IS FURTHER ORDERED that a copy of this Notice of Apparent Liability
       for Forfeiture shall be sent by first class mail and certified mail
       return receipt requested to Uniden America Corporation, 4700 Amon
       Carter Boulevard, Fort Worth, TX 76155, and to its attorney, Gregg P.
       Skall, Womble, Carlyle, Sandridge & Rice, LLC, Seventh Floor, 1401 I
       Street, NW, Washington, DC 20005.

   FEDERAL COMMUNICATIONS COMMISSION

   Kathryn S. Berthot

   Chief, Spectrum Enforcement Division

   Enforcement Bureau

   47 U.S.C. S: 302a(b).

   47 C.F.R. S: 2.803(g).

   47 C.F.R. S: 95.183(a)(4).

   Letter from Kathryn S. Berthot, Chief, Spectrum Enforcement Division,
   Enforcement Bureau, Federal Communications Commission to Uniden America
   Corporation. (June 25, 2009).

   Letter from Gregg P. Skall, Counsel for Uniden America Corporation., to
   Thomas D. Fitz-Gibbon, Esq., Spectrum Enforcement Division, Enforcement
   Bureau, Federal Communications Commission (August 24, 2009) ("LOI
   Response").

   LOI Response at 4.

   Marketing, as defined in 47 C.F.R. S: 2.803(e)(4), "includes sale or
   lease, or offering for sale or lease, including advertising for sale or
   lease, or importation, shipment, or distribution for the purpose of
   selling or leasing or offering for sale or lease."

   LOI Response  at 1-2, 5.

   Id. at 1-2.

   Id. at 5, Attachment 2. Uniden requested confidential treatment of the
   attachments to its LOI Response, including the exact number of GMRS
   devices sold and distributed in the United States. Id. at 1. Accordingly,
   this information is discussed in an Appendix, which we are treating as
   confidential at this time. The request for confidentiality remains
   pending.

   Id. at 2.

   Id. at 1-2.

   Id. at 3.

   Id.

   Id. See Office of Engineering and Technology KDB Publication number 791760
   at www.fcc.gov/labhelp.

   Id.

   LOI Response at 3.

   Id. at 3, Attachment 2.

   Letter from Gregg P. Skall, Counsel for Uniden America Corporation, to
   Thomas D. Fitz-Gibbon, Esq., Spectrum Enforcement Division, Enforcement
   Bureau, Federal Communications Commission (September 2s, 2009) ("Second
   LOI Response").

   Letter from Gregg P. Skall, Counsel for Uniden America Corporation, to
   Marlene H. Dortch Secretary,, Federal Communications Commission (October
   7, 2009) ("Third LOI Response"), at 2-3

   Id. at 2-3

   Id. at 3.

   Section 312(f)(1) of the Act, 47 U.S.C. S: 312(f)(1), which applies to
   violations for which forfeitures are assessed under Section 503(b) of the
   Act, provides that "[t]he term `willful', ... means the conscious and
   deliberate commission or omission of such act, irrespective of any intent
   to violate any provision of this Act or any rule or regulation of the
   Commission authorized by this Act ...." See Southern California
   Broadcasting Co., Memorandum Opinion and Order, 6 FCC Rcd 4387 (1991).

   Section 312(f)(2) of the Act provides that "[t]he term `repeated', ...
   means the commission or omission of such act more than once or, if such
   commission or omission is continuous, for more than one day." 47 U.S.C. S:
   312(f)(2). See, e.g., Callais Cablevision, Inc., Grand Isle, Louisiana,
   Notice of Apparent Liability for Monetary Forfeiture, 16 FCC Rcd 1359,
   1362 P: 10 (2001) ("Callais Cablevision") (issuing a Notice of Apparent
   Liability for, inter alia, a cable television operator's repeated signal
   leakage).

   47 U.S.C. S: 503(b).

   47 U.S.C. S: 503(b)(2)(E).

   47 U.S.C. S: 503(b)(6).

   See 47 U.S.C. S: 503(b)(2)(D), 47 C.F.R. S: 1.80(b)(4); see also Behringer
   USA, Inc., Notice of Apparent Liability for Forfeiture,  21 FCC Rcd 1820,
   1825 (2006), forfeiture ordered, Forfeiture Order, 22 FCC Rcd. 1051 (2007)
   (forfeiture paid); Globcom, Inc. d/b/a Globcom Global Communications,
   Notice of Apparent Liability for Forfeiture, 18 FCC Rcd 19893, 19903
   (2003), forfeiture ordered, Forfeiture Order,  21 FCC Rcd 4710 (2006);
   Roadrunner Transportation, Inc., Forfeiture Order,  15 FCC Rcd 9669,
   9671-71 (2000); Cate Communications Corp., Memorandum Opinion and Order, 
   60 RR 2d 1386, 1388 (1986); Eastern Broadcasting Corp., Memorandum Opinion
   and Order, 10 FCC 2d 37 (1967), recon. den.,11 FCC 2d 193 (1967); Bureau
   D'Electronique Appliquee, Inc., Notice of Apparent Liability for
   Forfeiture, 20 FCC Rcd 3445, 3447-48 (Enf. Bur., Spectrum Enf. Div. 2005),
   forfeiture ordered, 20 FCC Rcd 17893 (Enf. Bur., Spectrum Enf. Div. 2005)
   ("B.E.A.").

   The Commission's Forfeiture Policy Statement and Amendment of Section 1.80
   of the Rules to Incorporate the Forfeiture Guidelines, 12 FCC Rcd 17087,
   17113 (1997) ("Forfeiture Policy Statement"), recon. denied, 15 FCC Rcd
   303 (1999).

   47 C.F.R. S: 1.80.

   Third LOI Response at 3.

   See, e.g., San Jose Navigation, Inc., Notice of Apparent Liability for
   Forfeiture, 21 FCC Rcd 2873 (2006), forfeiture ordered, Forfeiture Order,
   22 FCC Rcd 1040 (2007) ("San Jose"); Behringer, 21 FCC Rcd at 1827; ACR
   Electronics, Inc., Notice of Apparent Liability for Forfeiture, 19 FCC Rcd
   22293, 22302 (2004), forfeiture ordered, 21 FCC Rcd 3698 (2006); Samson
   Technologies, Inc., Notice of Apparent Liability for Forfeiture, 19 FCC
   Rcd 4221, 4225 (2004), consent decree ordered, 19 FCC Rcd 24509 (2004).

   See, e.g., San Jose, 21 FCC Rcd at 2876 (upwardly adjusting a proposed
   forfeiture based on the volume of non-compliant devices distributed, and
   the three-year span in which such devices were marketed); B.E.A., 20 FCC
   Rcd at 3448 (upwardly adjusting a proposed forfeiture based on the volume
   of unauthorized devices distributed, and the five-year span in which such
   devices were marketed).

   The reported revenues for the year ending March 31, 2008, of Uniden's
   parent, Uniden Corporation, a Japanese company, were YEN 6,300,000,000
   (approximately $710,000,000). Stock Quote and Company Profile,
   Businessweek.com.

   Specifically, the Commission stated:

   [O]n the other end of the spectrum of potential violations, we recognize
   that for large or highly profitable communication entities, the base
   forfeiture amounts ... are generally low. In this regard, we are mindful
   that, as Congress has stated, for a forfeiture to be an effective
   deterrent against these entities, the forfeiture must be issued at a high
   level .... For this reason, we caution all entities and individuals that,
   independent from the uniform base forfeiture amounts ..., we intend to
   take into account the subsequent violator's ability to pay in determining
   the amount of a forfeiture to guarantee that forfeitures issued against
   large or highly profitable entities are not considered merely an
   affordable cost of doing business. Such large or highly profitable
   entities should expect in this regard that the forfeiture amount set out
   in a Notice of Apparent Liability against them may in many cases be above,
   or even well above, the relevant base amount.

   Forfeiture Policy Statement, 12 FCC Rcd at 17099-100.

   47 C.F.R. S: 0.111, 0.311 and 1.80.

   (Continued from previous page)

   (continued....)

   Federal Communications Commission DA 09-2374

   2

   Federal Communications Commission DA 09-2374